The time is now
FOI Alert Volume 2 Issue 9
This is the year that state legislatures should act to pass laws that would keep drivers records open. If states don't pass such laws, the federal Driver's Privacy Protection Act takes over in September.
The federal law continues to cause confusion for journalists.
Because of numerous requests to SPJ, we are re-publishing a FOI Alert distributed in 1995. This should answer most of your questions.
The October 1996 FOI issue of Quill magazine also carries a copy of model state legislation and has a list of the few states that have passed opt-out laws.
Please let us know what's happening in your state.
It's time to get busy.
What information remains public under the federal act?
This information remains open ...
Information on vehicular accidents
If your state law permits the release of this information, then you should still be able to get it. So, if you have the name of a driver (and his or her address if you have a common name), you can still check that driver's individual record even if that driver has asked for his or her records to be closed under state opt-out legislation.
If that person has a common name, however, then the task becomes almost impossible. The federal law prohibits disclosure of "personal information."
That includes: photograph, Social Security number, driver identification number, name, address, telephone number and medical or disability information.
An individual can't ask for his or her driving record to be closed under the federal legislation (even under opt-out laws). For example, if you wanted to do a story checking school bus drivers' records, that could still bedone but only if you had the bus drivers' names.
What you can't do is go to a Klan rally and take down everyone's license plate number to find out who those individuals are by using identifying personal information such as addresses.
Who is exempt from the law?
Several exemptions were won by special interest groups lobbying on this bill including insurance companies, direct marketers, tow truck companies and licensed private investigators. Some of the uses are poorly defined.
There's a reference to "use in the normal course of business by a legitimate business." This is not defined. However, it is clear that direct marketers can continue to get this data.
Personal information may be disclosed for use by government agencies for use in connection with matters of motor vehicle, driver safety and theft. Researchers can get information "provided the information isn't
published, redisclosed or used to contact individuals."
The accuracy of information submitted on a job application can be checked by an employer.
Other exemptions are allowed: for use in court cases; for use in connection with the operation of private toll transportation facilities; or by anyone if they have written consent of the individual. (In Illinois, the secretary of state has issued an opinion that says state law already permits disclosure of these records to the news media-as long as that request is made for legitimate business purposes. The state considers its law to be an exemption from federal law.)
Will all state records be automatically closed after September 1997 if my state doesn't pass an opt-out bill?
Personal information will be automatically closed.
"One of the main problems with this thing is that the law is so poorly drafted, it has confused the hell out of state motor vehicle officials," said Robert Lystad, general counsel for SPJ. "They're not going to know what they can and cannot release. The grave danger is that state motor vehicle officials will close off all information to everyone for fear of violating the specific non-disclosure provisions."
Why is opt-out legislation critical in states?
Unless a state passes opt-out legislation, personal information will not be available to the public. Even without the push from the federal crime law, some states have already adopted privacy provisions. In 1991, the Colorado legislature adopted a privacy measure covering both drivers license and voting records. A survey two years later showed that 226 of about 2.3 million licensed drivers filed the necessary paperwork to have their records sealed. Most of the people who "opted out" in Colorado were lawyers, police officers and victims of domestic abuse in that order.
What does an opt-out law do?
It gives a driver the opportunity to request that his or her personal information not be disclosed.
A model state law drafted by the Washington, D.C., firm of Baker & Hostetler states that all records of a motor vehicle department be made available to the public.
Under the model law, an agency would have to give a driver the opportunity to request his or her information not be disclosed. Federal law requires that a state must create a system where a driver can make this individual choice.
A state opt-out law can be passed after the federal deadline. But until an opt-out law is passed, all personal information will be closed to the public and the media beginning in September 1997.
Will I be able to buy entire data bases for analysis,
and how will this law affect my research?
In general, reporters would not be able to get DMV data bases under the law. There is an exemption, however, for use in research activities. Unfortunately, research activities are not defined well. The law says "for use in research activities, and for use in producing statistical reports, so long as the personal information is not published, redisclosed, or used to contact individuals. Even so, it no longer remains a good tool for journalists. For example, you wouldn't be able to call individuals in that data base for on-the-record interviews.
Where were media groups when this federal legislation passed?
Several media groups, including SPJ, American Society of Newspaper Editors, Newspaper Association of America, National Newspaper Association, Radio-Television News Directors Association and Reporters Committee for Freedom of the Press, worked for language that allows states to opt out of the federal law and keep this information public. These groups were philosophically opposed to a special exemption for the press. All groups opposed the bill but realized that opt-out language was the only alternative to total closure.